From: Matthew Hoyle <MHoyle@oeclaw.co.uk>

Sent: Friday 12 December 2025 10:51

To: Andrew Dickinson; Robert Stevens; Peter Watts; Lionel Smith; ODG

Subject: RE: X v Lord Advocate [2025] UKSC 44

As ever, Lord Hoffmann manages in a couple of lines more than my entire email!

The oddities which might result from this deployment of the 'always speaking' principle are obvious. Say the 1947 Act, instead of the scheme it adopted in s.1, had expressly made the Crown liable in 'contract' and 'tort' (which is more akin to how s.23 of the Victorian version of this Act works).

In 1947 (as in 1939 in the limitation context) 'contract' would have been understood to encompass all 'assumpsit' and implied or quasi-contractual claims. No problem then in saying it applies to a mistaken payment claim against the Crown. However, if we apply the UKSC approach in X, prima facie the Act would no longer cover a claim against the Crown to recover a mistaken payment.

Lord Leggatt is I think much better on always speaking in News Group than the majority. The 'always speaking' principle is not a coherent principle, and is liable to confuse very different ideas of interpreting words.

Matthew Hoyle

Barrister

One Essex Court

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From: Andrew Dickinson <andrew.dickinson@stcatz.ox.ac.uk>
Sent: 12 December 2025 09:34
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; Robert Stevens <robert.stevens@law.ox.ac.uk>; Peter Watts <pg.watts@auckland.ac.nz>; Lionel Smith <lionel.smith@law.ox.ac.uk>; ODG <obligations@uwo.ca>
Subject: Re: X v Lord Advocate [2025] UKSC 44

See also eg Harding v Wealands [2006] UKHL 32, [51] (Lord Hoffmann)

https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd060705/hardin.pdf

From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: Friday, December 12, 2025 09:27
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Peter Watts <pg.watts@auckland.ac.nz>; Lionel Smith <lionel.smith@law.ox.ac.uk>; ODG <obligations@uwo.ca>
Subject: Re: X v Lord Advocate [2025] UKSC 44

Paragraph 23 explains what Rob and Jason have noted seems a bizarre inability to explain part of the statute:

"Also of potential relevance in this case is the principle that a statute is "always speaking". As understood in the modern context, what this means is that, in general and subject to the statutory words not permitting this, the words should be interpreted in the light of changes that have occurred since the statute was enacted. Those changes may include, for example, technological developments, changes in scientific understanding, changes in social attitudes and - of importance in this case - changes in the law"

That paragraph is absolutely mind boggling to me. On what basis is it permissible to just assume you can interpret the meaning of Act passed in 1947 by reference to the law of vicarious liability as it now stands? Compare (although I disagree with the conclusion in print) Primeo Fund (in Official Liquidation) v Bank of Bermuda (Cayman) Ltd and another [2023] UKPC 40. Lord Leggatt there engaged in a very detailed review of the law as it stood in 1945 to determine the scope of the LR (Contributory Negligence) Act.

The proof of why this approach is wrong is Rob's analysis - you simply start upsetting the statutory scheme and potentially disrupt key statutory protections because you are using concepts in a way not consistent with the way Parliament was using them and understood them.

Matthew Hoyle

Barrister

One Essex Court

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From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Friday, December 12, 2025 9:09:33 AM
To: Peter Watts <pg.watts@auckland.ac.nz>; Lionel Smith <lionel.smith@law.ox.ac.uk>; ODG <obligations@uwo.ca>
Subject: RE: X v Lord Advocate [2025] UKSC 44

Plainly if the principal procured the tort the principal will be liable, but that is true of anyone who procures a tort (i.e. irrespective of an agency relationship).

I hesitate to disagree with Peter about agency law, but I do not agree with this short statement. Procuring requires inciting, inducing or persuading . By contrast if P authorises A to do an action on his behalf, and A does that action on P s behalf, if that action is a tort against X, P has committed a tort against X jointly with A. There is no need to satisfy the narrower test of procurement. Although rare, you can also have situations where P ratifies the unauthorised actions A took on P s behalf, which will also render P a joint tortfeasor. The ratification cases are more obviously not ones of procurement , time s arrow only going one way.

As Jason says, on vicarious liability more generally, I remain unrepentantly of the view that it was explained, and can still only be explained, on the basis of the Master s Tort theory, and that the basket of policy concerns that the UKSC (and others) invoke to try and explain it as a species of strict liability are (politely) unconvincing.

Under the Master s Tort explanation, the employee s action is attributed to the employer, so that if that action constitutes a tort, each is committing the same tort jointly (ie vicarious liability is a species of agency law). Under the servant s tort theory, the master isn t a tortfeasor at all, instead we re holding them strictly liable for the torts of someone else for an array of policy reasons (loss spreading, enterprise risk, deterrence etc etc).

The master s tort theory, unlike the servant s tort theory, explains the central features of the doctrine. For example

Why it is vicarious. None of the policy explanations, either singly or in combination with any of the others, explains why liability is dependent upon a tort committed by someone else
Why there is no causal requirement. The employer s liability is not dependent upon any causal connection between the employment and the tort. Indeed, liability cannot be avoided by showing beyond peradventure that the employee would have committed the same tort regardless of having been employed. Exactly the same is true of express authorisation. If I authorise you to punch X, and you do so on my behalf, I am a tortfeasor even if you would have punched X yourself anyway.

Once we accept the Master s Tort theory must be the truth (and there are several other rules we all accept, such as how contributory fault works, that I consider to be proofs) the old Salmond test of scope of employment ( an unauthorised mode of an authorised act ) made perfect sense. This is an extension of, and part of the same rule as, express authorisation.

Partnership works in the same way, and the rules there also can t be explained using the basket of policy concerns that are invoked to explain vicarious liability. Partnership isn t a species of employment, nor is it akin to employment. An employee is someone the employer has control over. One partner has no control over another partner.

But, partners agree to act together. The acts of one partner within the scope of the partnership agreement are attributed to all other partners. If the acts of one is a tort, each jointly commits that tort. Agreement, like authorisation, is a way in which we attribute one person s actions to another. It is loose to say that this is an intimate relationship. I am in an intimate relationship with my children but, thank God, that doesn t mean under English law that their actions are attributed to me.

And this account also explains the Crown Proceedings Act, which the UKSC cannot do. The Act says

Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:

(a)in respect of torts committed by its servants or agents;

Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.

On the servant s tort theory, that proviso makes no sense (as the UKSC admits). Under the servant s tort theory, the employer can only be liable if the employee is liable, so there is no need for any proviso. But as Glanville Williams explained, sometimes the employee may not be liable because they have an immunity that is personal to them but the employer can still be liable. An example is the immunity a husband had for torts to his wife. If the husband was acting in the course of his employment in injuring his wife, his employer was still liable because the *acts* of the husband are attributable to his employer: Broom v Morgan [1953] 1 QB 597. Under the modern view that is of course inexplicable, but much more central features of the doctrine than that are also inexplicable.

This became very important when Crown immunity was abolished in 1947, because many agents of the Crown (eg judges) themselves have personal immunities from committing various torts (eg defamation when giving a court judgment). If the proviso did not exist, these immunities could be bypassed by suing the Crown.

Notice that the entire section makes no sense on the servant s tort theory. On that theory the liability of the employer/Crown isn t for a tort at all. Compare the opening words of the section ( in tort ).

Is the case wrong under the law as it was understood in 1947 (which made perfect sense and has been mucked up since)? Indeed, how should it have been decided today?

First, judges aren t just acting for themselves, they re acting for the State. If they commit a tort in the course of acting for the State, the State should be liable. It was that immunity for the Crown that the 1947 Act was intended to remove.

But, second, for those acts that judges carry out on behalf of the State (eg judges giving judgments) they themselves always(?) have an immunity. So, you can t sue the Crown either.

Here the alleged assault that was carried out was not an act done as a judge. It wasn t an unauthorised mode of an authorised act so you can t sue the Crown for that either.

But, two of the three alleged assaults occurred in the court building. Under the law as it was in 1947 (in England I don t know about Scotland) occupiers who invited people on to premises assumed a duty that care would be taken of them. (ie there was a non-delegable duty to invitees). So, the Crown should have been liable in 1947 after the passing of the Crown Proceedings Act like any other occupier who has invited another on to the premises. It shouldn t matter a damn that the assault was deliberate, that is a fortiori from their having been carelessly injured (cf the HCA s appalling decision in NSW v Lepore, which is currently being sought to be reversed).

But, alas, in 1957 the Occupiers Liability Act was passed, and that legislation foolishly abolished the distinction between invitees (to whom responsibility was assumed) and licensees (to whom responsibility was not assumed and who had only their vanilla Donoghue v Stevenson rights). I assume the Occupiers Liability Act (Scotland) Act 1960 leads to the same position.

So, after 1957 that claim doesn t work. It should. The Crown ought to be liable for the assaults of people to whom it has assumed responsibility by inviting them into court rooms.

From: Peter Watts <pg.watts@auckland.ac.nz>
Sent: 12 December 2025 03:38
To: Lionel Smith <lionel.smith@law.ox.ac.uk>; ODG <obligations@uwo.ca>
Subject: Re: X v Lord Advocate [2025] UKSC 44

I have no contribution to make at this point on the possible vicarious liability of the Crown for acts of judges and other state officials. But in response to Lionel s assumption that vicarious liability applies to the principals of agents, I think this is wrong. Agency is not a status for the purpose of the operation of vicarious liability (the car cases are anomalous and mis-reasoned). An agent is either an employee or an independent contractor (putting aside gratuitous actors). With most torts (but cf negligent misstatement) a principal is vicariously liable only for the acts of employees or those akin thereto. The principal is not so liable for the acts of agents who are independent contractors. Plainly if the principal procured the tort the principal will be liable, but that is true of anyone who procures a tort (i.e. irrespective of an agency relationship).

As for the vicarious liability of partners, I think that this turns not on agency but on the fact that partners, as co-owners of the business, are in an even more intimate relationship than employment. It might be thought odd to be vicariously liable for the acts of employees but not those of co-managers of the business. Peter.

From: Lionel Smith <lionel.smith@law.ox.ac.uk>
Date: Friday, 12 December 2025 at 15:07
To: ODG <obligations@uwo.ca>
Subject: Re: X v Lord Advocate [2025] UKSC 44

Thank you Haim, Jason, and Neil.

I am no tort lawyer, nor a legal historian, but this might be interesting for those who are. I was recently looking into C19 decisions on public trusts whose trustees were performing functions of government but which were not charitable trusts inasmuch as the property held in trust was not given, but rather raised under statutory authority. The majority view, as I understand it, following the resolution of some earlier debates by the decision in Attorney-General v Dublin (City) (1827) I Bligh NS 312, 4 ER 888 (HL), was that these were public non-charitable trusts (although by the turn of the C20 some judges were already starting to use the expressions public trust and charitable trust as synonymous, as they had at the start of the C19 and perhaps before). (For those who find all this surprising, as I did, see: J Barratt, Public Trusts (2006) 69 MLR 514; C Mitchell, Public Trusts, 1750-1850 in D Foster and C Mitchell (eds), Essays on the History of Equity (Hart 2026) forthcoming but available at https://ssrn.com/abstract=4495395; and, for a recent example of a public non-charitable trust, R (on the application of Day) v Shropshire Council [2023] UKSC 8.)

In relation to these public trusts performing functions of government, some cases held that the trustees were immune from vicarious liability, but this seems to have been rejected, with contrary cases overruled, in Mersey Docks Trustees v Gibbs (1866) LR 1 HL 93. When I read that case, I assumed that the earlier idea that there should be no tort liability for such trustees (who were always acting under statutory authority) was a kind of read-over from Crown immunity. But if that was right, the immunity described by Jason in his point (3) should not have survived the Crown liability legislation. Indeed, with the greatest respect for a great judge and not having read the decision, I find the passage quoted by Jason from Dixon J hard to follow. In every case, there will surely be someone between the tortfeasor and the Crown who was exercising a discretion and responsibility which rests upon him in virtue of his office or of some designation under the law , even if it is a Minister of the Crown. Is the doctrine that Jason describes only applicable when the office-holder him- or herself commits the tort (and if instead it is their subordinate, the Crown can be liable)? That would be a bit strange.

As for Neil s point, surely an agency relationship attracts vicarious liability independently of an employment relationship, and partners are mutual agents in relation to the business of the partnership?

Cheers,

Lionel

From: Jason Neyers <jneyers@uwo.ca>
Date: Thursday, December 11, 2025 at 09:36
To: ODG <obligations@uwo.ca>
Subject: ODG: X v Lord Advocate [2025] UKSC 44

It is an interesting decision.

Three observations:

I have some sympathy for the plaintiff s argument that servant of the Crown might have a different and wider meaning than the modern law of vicarious liability stage 1 (especially in light of the independent discretion doctrine that had developed in response to this liability, more on this in 3).

Discussion of the Proviso to Section 2(1)(a) at [55]: The court can t seem to find any reason for the proviso, but it seems fairly obvious to me that it was inserted because the juridical foundation of vicarious liability (was it the attribution of torts or acts, ie servant s tort vs master s tort theory?) was still at the time (and might still, see Stevens, be) up for grabs.

I found it interesting that there was no discussion of the (very) traditional independent discretion doctrine in relation to vicarious liability and the Crown: As Dixon J. noted in Field v. Nott (1939), 62 C.L.R. 660 (H.C.A.) at 675:

When a public officer, although a servant of the Crown, is executing an independent duty which the law casts on him, the Crown is not liable for the wrongful acts he may commit in the course of his execution. As the law charges him with a discretion and responsibility which rests upon him in virtue of his office or of some designation under the law, he alone is liable for any breach of duty.

The rule had been applied in many cases, Little v. The Commonwealth (1947), 75 C.L.R. 94 (H.C.A.); Fowles v. Eastern and Australian Steamship Co., [1916] 2 A.C. 556 (P.C.); Esso Petroleum Co. v. Hall Russell & Co., [1989] 1 A.C. 643 (H.L.), see Kneebone, The Independent Discretionary Function Principle and Public Officers (1990) 16 Monash Univ. L. Rev. 185. Perhaps there is some UK-specific reason (such as a statutory provision) why it no longer applies, or perhaps because the court concluded that Judges are never Crown servants it was thought totally irrelevant?

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

From: Abraham, Haim <haim.abraham@ucl.ac.uk>
Sent: December 11, 2025 6:33 AM
To: obligations <obligations@uwo.ca>
Subject: X v Lord Advocate [2025] UKSC 44

Dear all,

I hope this email finds you well.

The UK Supreme Court handed down a decision in X v Lord Advocate [2025] UKSC 44, in which it provides a detailed analysis of the vicarious liability of the Crown for alleged battery and (sexual) harassment committed by a Scottish judge against a solicitor.

The key paragraphs of Lord Reed and Lord Burrow s judgment are, in my view, 41-63, and I include them below.

Both the interpretation of the Crown for the purposes of the Crown Proceeding Act, and approach Stage 1 of the vicarious liability analysis, are narrow.

The five incidents test hasn t been clearly applied fully, and instead the focus was on control and separation of powers, resulting in a decision that Stage 1 couldn t be established in cases such as this.

In my view, other factors in this case could lead to the opposite conclusion, particularly the source of judicial powers, the provision of means to exercise these powers, and the risks created on and off premises given the nature of the dynamics.

Some of the key paragraphs:

41. That description of the Crown, and the characterisation of it as a corporation sole, indicate that in some contexts, at least, the Crown simply means the Sovereign in his official capacity

42. ... The effect of that provision was that, unless a contrary intention appeared (and there is none), references to the Crown in the 1947 Act were to be construed as referring to the Sovereign for the time being

43. However, if it is correct that the Crown is referring to the Sovereign acting in his official rather than personal capacity, one still has to recognise that the Sovereign s official capacities are wide-ranging. It is at this point in the analysis that the parameters of the 1947 Act, as laid down in section 40(2)(b), are crucial. Section 40(2)(b) lays down that the liability of the Crown must arise in respect of His Majesty s Government in the United Kingdom or the Scottish Administration. This is of critical importance because the Crown possesses functions and powers which do not concern His Majesty s Government in the United Kingdom or the Scottish Administration.

44. Some powers and functions of the Crown fall outside those categories for territorial reasons. So, for example, the Crown could not be sued under the 1947 Act in respect of a nuisance allegedly arising out of the use of a military base in West Germany: Trawnik v Lennox [1985] 1 WLR 532. Other illustrations include R v Secretary of State for the Home Department, Ex p Bhurosah [1968] 1 QB 266, concerned with the Crown in right of Mauritius, Franklin v Attorney General [1974] QB 185 and Mutasa v Attorney General [1980] QB 114, concerned with Southern Rhodesia, R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta [1982] QB 892, where the relevant liabilities were held to be in respect of the Crown in right of Canada, and R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529, where it was held that the Secretary of State had acted on behalf of the Queen in right of South Georgia and the South Sandwich Islands. This territorial limitation was even more important in 1947, when the Sovereign was the head of an extensive empire owing a single allegiance.

45. Other powers and functions of the Crown fall outside those categories because, although they relate to the United Kingdom, they are not of an executive character (and hence do not arise in respect of His Majesty s Government in the United Kingdom or the Scottish Administration ). An example is the Crown s function as a legislator: every Act of Parliament states that it was enacted by the King s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and temporal, and Commons, in this present Parliament assembled . Constitutionally, the Crown s commission is also the source of all judicial authority, although the monarch cannot personally execute any judicial office: Prohibitions del Roy (1607) 12 Co Rep 63; 77 ER 1342. Section 40(1) and section 40(2)(b) reflect the constitutional role of the judiciary in relation to the monarch in his or her private capacity and as the head of the executive.

48. Accordingly, in essential agreement with the views of the lower courts on this issue although it will be clear that we have regarded it as important to explore this issue in much greater depth than was possible in the lower courts the vicarious liability imposed on the Crown, that is the Sovereign in his official capacity, by section 2(1)(a) of the 1947 Act is a liability arising in respect of the Government of the United Kingdom or the Scottish Administration. As we have explained at para 18, the Scottish Administration includes the Scottish Government but also includes other office-holders. Vicarious liability can therefore arise under the 1947 Act in respect of the acts or omissions of the Scottish Ministers (who form the Scottish Government), junior ministers (who do not form part of the Scottish Government, but are part of the Scottish Administration), and other office-holders, together with the staff of all of the foregoing.

49. In the present proceedings, the focus must be on the Scottish Administration, and more specifically on the Scottish Government, as a constituent part of the Scottish Administration. That is because it is the Scottish Government that has responsibility for the payment of the salaries of judicial office-holders and, through the First Minister, has responsibility for the appointment and removal of judicial office-holders. In other words, as regards the relationship with judicial office-holders, the Sovereign in his official capacity acts through the Scottish Government. We therefore consider that it is the relationship between the Scottish Government and judicial office-holders that needs to be focussed on in considering the vicarious liability of the Crown in this case.

51. Returning to the primary submission advanced on behalf of the pursuer, while not necessarily disagreeing with what Mr McBrearty has argued on the meaning of Crown servant , we fundamentally disagree with his suggested interpretation of section 2(1)(a) (see para 30 above). On the correct interpretation, section 2(1)(a) is not self-contained. Rather the common law, and hence the modern development in the common law, of vicarious liability is relevant and important.

53. Focusing on section 2(1)(a), therefore, the words effect the purpose of imposing on the Crown the law on vicarious liability in delict or tort. The purpose is not, as the pursuer submits, to impose on the Crown only a limited part of that law and nor is it to deem aspects of that law (ie the first stage of vicarious liability) as being automatically satisfied where the wrongdoer is a Crown servant.

54. It follows from this correct interpretation that all the law on vicarious liability, that would apply if the Crown were a private person, applies to the Crown; and that includes the development of the common law at stage 1 to embrace a relationship that is akin to employment. That one should include that development is supported by the principle of statutory interpretation that a statute is always speaking (see para 23 above). In so far as the words permit it, an interpretation that embraces developments in the common law is in general to be preferred to one that excludes such a development by treating the interpretation of the statute as frozen in time.

58. That alternative submission also fails. There are two compelling and linked reasons why the relationship between a sheriff and the Scottish Government is not akin to employment. 59. First, there is no control by the Scottish Government over the performance by sheriffs of their judicial functions. The judiciary itself determines listing matters (ie where and when a sheriff sits and which cases he or she hears). At the extreme, there is a statutory procedure, laid down in sections 21-25 of the Courts Reform (Scotland) Act 2014, for the removal from office of a sheriff by the order of the First Minister as being unfit for office. But that requires a report from a specially convened tribunal recommending removal from office, and the order is subject to the negative procedure before the Scottish Parliament.

60. Secondly, and most crucially, it is a constitutional principle, resting on the separation of powers, that the judiciary is independent of government. A sheriff must be free to decide a case without any interference or the fear of interference by the Scottish Government ... Accordingly, the Scottish Government can tell a sheriff neither what to do nor how to do it.

62 Although the question whether a person is a worker within the meaning of the Employment Rights Act 1996 is different from the question whether the stage 1 test of vicarious liability is met, as Lady Hale made clear in Various Claimants v Barclays Bank plc [2020] UKSC 13; [2020] AC 973, para 29, the constitutional context to which Lady Hale referred in Gilham v Ministry of Justice is important in both contexts.

Best,

Haim

Dr Haim Abraham

Assistant Professor

UCL Faculty of Laws, University College London

E: haim.abraham@ucl.ac.uk W: https://www.ucl.ac.uk/laws/people/haim-abraham Twitter: @HaimAbraham

UCL Faculty of Laws | Bentham House| 4-8 Endsleigh Gardens | London | WC1H 0EG

New Book: Tort Liability in Warfare: States' Wrongs and Civilians' Rights (Oxford University Press, 2024)

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